Executive Privilege or Stonewalling?

In today's testimony, Attorney General Sessions declined to provide the substance of conversations he had with the President. There was heated argument about this. The Democrats' point of view was that Sessions was necessarily either invoking executive privilege or simply stonewalling.

Question: Which was it?

Answer: Neither.

It was the most recent iteration of an established policy grounded in separation of powers and used, quite a few times as it happens, by high officers of the Obama Administration.

The following examples are being cited by the RNC:

·

Ben Rhodes, Deputy National Security Adviser to President Obama, refused to testify before the House Oversight Committee regarding how he and President Obama "sold the Iran nuclear deal to the public." "On Monday, three Republican senators called on President Barack Obama to fire his deputy national security adviser, saying Rhodes had been 'disrespectful,' 'deceptive' and 'destructive' in how he had sold the Iran nuclear deal to the public. The White House, meanwhile, said Rhodes will not testify about the deal before a House committee, calling it a 'separation of powers' issue." (Politico, 5/16/16)

· The Obama White House cited "significant constitutional concerns." "House Oversight Committee Chairman Jason Chaffetz invited Rhodes to appear before his panel on Tuesday for a session titled 'White House Narratives on the Iran Nuclear Deal.' But in a letter to Chaffetz, White House counsel W. Neil Eggleston writes that Rhodes will not appear before the committee because it would raise 'significant constitutional concerns.'" (Politico, 5/16/16)

· Obama's White House counsel said Rhodes appearing before Congress "threatens the independence and the autonomy of the president, as well as his ability to receive candid advise..." "The appearance of a senior presidential adviser before Congress threatens the independence and the autonomy of the president, as well as his ability to receive candid advice and counsel in the discharge of his constitutional duties," Eggleston writes. (Politico, 5/16/16)

Note: While Obama's White House counsel did not specifically cite 'executive privilege,' it had become standard practice for Obama aides not to do so without further legal steps being taken. "The letter does not say the Obama administration is invoking 'executive privilege' in keeping Rhodes away, but the administration prefers to avoid that term whenever possible. Generally speaking, Obama aides won't say they are asserting the privilege unless further legal steps are involved, such as a subpoena being issued." (Politico, 5/16/16)

Attorney General Sessions, by contrast, voluntarily appeared before the Senate in open session.

Having lived inside the Beltway for a while now, I should probably add a thought on what was really going on today, which is less than meets the eye. Those accusing the Attorney General knew all about the principle, invoked by Presidents of both parties, of declining to provide to Congress one-on-one communications between the President and Cabinet or sub-Cabinet officers. Their indignant reaction was something of a hoot to those of us with a memory longer than last year. The point was simply to be able to repeat the words "executive privilege" as often as possible, because they understand that those words are associated in the public mind with Richard Nixon and Watergate.

The street theater going on in the Senate was not about any suspicion that Jeff Sessions is a scoundrel, since his former colleagues know perfectly well he isn't. Instead, it was politically to undermine Donald Trump, whose election is still resented, and whose tough-on-crime policies do not sit well with the constituencies, and contributors, important to the Administration's critics.